Lord Mottistone: My Lords, with the leave of the House, will my noble friend give me one reassurance? Will the guidance be made public? That is what is needed. That would make all the difference. It does not matter whether it is laid before Parliament in the formal state so long as we can write to Ministers and say, "You have missed out this or that". That is all we wish to do.

Earl Ferrers: My Lords, I believe that I can satisfy my noble friend on that. Before the guidance is given out as official guidance, it will be available for consultation.

Lord Mottistone: My Lords, I am indeed grateful to my noble friend for that great reassurance. I have pleasure in begging leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 182 [Application for assistance]:

Earl Ferrers moved Amendment No. 64:

Page 111, line 30, leave out ("duty") and insert ("function").

The noble Earl said: My Lords, in moving Amendment No. 64, I speak also to Amendments Nos. 75 and 81.

Amendment No. 64 is a technical amendment. It makes clear that eligibility for assistance includes assistance provided not only under any duty, but also under any power.

Amendment No. 75 makes clear that the "alternative accommodation" provisions in Clause 196 do not apply where only a minor duty (for example, to provide advice and assistance or to provide accommodation for a very short period) is owed to a person.

Noble Lords will recall that I moved a number of similar amendments at Report stage which removed the "alternative accommodation" provisions from a number of minor duties. Amendment No. 75 is intended to bolster those earlier amendments by placing beyond doubt that the duty does not apply in such circumstances. I beg to move.

On Question, amendment agreed to.

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Clause 185 [Asylum-seekers and their dependants]:

Lord Dubs moved Amendment No. 65:

Page 112, line 42, at end insert (", or when a decision to grant a period of exceptional leave to remain in the United Kingdom is recorded by the Secretary of State as having been made").

The noble Lord said: My Lords, I beg to move the amendment standing in my name and that of the noble Earl, Lord Russell.

Perhaps I should precede my remarks by saying that it is moved for the avoidance of doubt. There is an element in Clause 185 which is not totally clear. I hope that the amendment, or the Government's response, will clarify the position.

Clause 185(2) states when, for the purposes of this section, an individual becomes an asylum-seeker.

The clause also refers to ceasing to be an asylum-seeker. The situations outlined in Clause 185(2)(b) include when an asylum-seeker's claim is recorded as having been finally determined or abandoned; that is to say, the claim has been finally determined by giving the individual full refugee status, or by refusing such status, or when the individual has abandoned the claim.

However, another possibility occurs in about four times as many instances as the granting of asylum. I refer to exceptional leave to remain. As drafted, it is not clear in Clause 185 whether the full entitlement to homelessness accommodation will attach itself to an individual who has been granted the status of exceptional leave to remain in the United Kingdom. Past practice suggests that that ought to be the case and it has always been the way in which people on ELR have been treated. However, because of the way Clause 185 is drafted, it is no longer clear that an individual on exceptional leave to remain would be entitled to homelessness provision under this part of the Bill. That is the amendment's purpose. I hope that the Minister can give some reassurance on it, otherwise we are left in an anomalous position as regards people who, in all respects, are able and allowed to stay here but who are not covered under the homelessness provisions. I beg to move.

Baroness Hamwee: My Lords, on behalf of my noble friend Lord Russell, whose name is attached to the amendment, I support the noble Lord, Lord Dubs. I moved a similar amendment at Committee stage and was told by the Minister that he suspected my amendment was inaccurate, if not technically defective. I felt duly squashed. He also said that he did not think that my amendment was practical, as the final determination of an asylum claim does not, in most cases, result in the grant of exceptional leave to remain.

As the noble Lord, Lord Dubs, explained, the proportion is significant and his amendment does not seek to change anything, merely to clarify the position. The amendment does not in any way challenge the Government's provisions on asylum seekers, it merely puts the status of someone with exceptional leave to remain into the context of housing provision.

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Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure whether the amendment moved by the noble Baroness at an earlier stage and the one moved by the noble Lord, Lord Dubs, this evening address the same problem. Perhaps I may leave that and explain what I think Amendment No. 65 seeks to achieve. Perhaps I may say, in the nicest possible way, that I am sorry the noble Lord did not raise the issue at an earlier stage. The provision he seeks to amend is taken directly from subsection (2) of Section 5 of the Asylum and Immigration Appeals Act 1993. That legislation has been in operation for nearly three years and the Department of the Environment has been given no evidence of the kind of problem which the amendment seeks to address, not even from the Refugee Council of which until recently the noble Lord was a respected director.

As noble Lords know, I do not often take refuge in technicalities but in this case they are important. The amendment is not in a form which I would find acceptable. The term "exceptional leave" does not appear in statute, it is a term which has no formal underpinning. It would be wrong to put into statute a term which had no definition. Were we to wish to give effect to the noble Lord's objective, we would need to take yet a further power to allow the Secretary of State to make regulations prescribing other circumstances when a person ceased to be regarded as an asylum seeker. The noble Earl, Lord Russell, is not in his place, but we know what noble Lords, led by him, usually think of regulation-making powers, especially those which are widely drawn.

We have made it clear throughout the passage of both this Bill and of the Asylum and Immigration Bill that we intend persons granted exceptional leave to have an entitlement to assistance under the homelessness legislation if they are unintentionally homeless and in priority need. They will also be entitled to housing benefit. I am not sure whether that was the point on which the noble Baroness, Lady Hamwee, wanted clarification. I believe that the point of the amendment is to address a subset of that.

If a person granted exceptional leave continues to pursue a claim for full refugee status and becomes homeless, what happens? He will have a right to assistance under the homelessness legislation, subject to the provisions of Clause 185(1); that is, he is not entitled to assistance if he has accommodation available, however temporary. Given that the homelessness duty is no longer to provide permanent accommodation, the kind of assistance he might expect to receive should result in accommodation of a similar character to any other person assisted under the legislation. In particular, that accommodation must be suitable for him and his household.

Bearing in mind that the situation has been in existence for nearly three years and that we can find no complaint arising from the narrow point, I believe that we can safely leave the legislation in its present state on the matter. If we had received any evidence, we might have been prepared to consider it at an earlier stage. I hope that I have explained to the noble Baroness the position on someone who has exceptional leave to

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remain. It is left at that. On the narrower point of someone who is granted leave but continues to seek refugee status, we believe that such a person would come under the homelessness legislation.

Lord Dubs: My Lords, I thank the Minister for clarifying the position. I appreciate that not many people are in the situation of having been granted ELR and then going on to claim asylum. In many respects, other than the right to family reunion, the position of such people is equivalent. It is only on family reunion that people might wish to improve their status to full refugee status. I understand the point.

However, the point has caused concern. I preceded my remarks by saying "for the avoidance of doubt" and up to a point the Minister has clarified the position. Given the asylum provisions in this Bill and those in the Asylum and Immigration Bill, the Minister will understand if some of us are a little suspicious about certain measures. Although the position has been clear up to now, I wished to make sure that the Government had not changed the position with regard to people on ELR without it being obvious that they had done so. I believe that the Minister will excuse my sense of suspicion if I now say that I thank him for having made the position clear. I beg leave to withdraw my amendment.